LaVerne contends that the deed creating the tenancy in common should be reformed to eliminate Coreys interest entirely, making her (LaVerne) the sole owner of the property. In support of this, she makes three arguments.

The first is her contention that Corey never had a true interest in the property and never made any payments towards it, but instead was on the deed (and co-signed the note and mortgage) solely to enable Katherine to obtain the mortgage  a mortgage, LaVerne concedes, which would never have been granted without Coreys participation. [Note 2] The consideration for Coreys signing the note and mortgage, LaVerne says, was that Corey could live in the house rent free for as long as she wanted. Under this theory, LaVerne (as Katherines successor) is now the propertys sole owner under the doctrine of resulting trust. See Plaintiffs Memorandum of Law (Feb. 16, 2012). An alternative theory of constructive trust is asserted based on a contention that the parties truly intended a joint tenancy, under which the survivor would take full title, rather than a tenancy in common.

The defendants deny these claims. There is no evidence that any of the parties intended a joint tenancy as opposed to a tenancy in common and, based on their knowledge of Corey, they are certain she would have paid her fair share of household expenses, including contributions towards the mortgage. Indeed, they say, Corey often spoke of the repairs and property improvements she either performed or paid for. With both Katherine and Corey now deceased and all records gone, there is no direct evidence of who paid for what (Katherine or Corey; LaVerne concedes that she herself made no payments towards household bills until after Katherines death) up until the time Corey took sick and left for Washington, D.C. in 1982. It is undisputed that Katherine paid the bills after Corey left, and that LaVerne paid them after Katherine died.

LaVernes second argument is that Corey relinquished all interest in the property by letter dated June 9, 1982, the date she moved to Washington D.C. to be cared for by her sister and her nieces and nephews (the defendants). Id. Corey never returned to the house and died a year later. The defendants deny this claim as well, on two grounds. First, they say, Corey would never have disinherited her nieces and nephews by giving up her ownership stake in such a major asset, particularly when they were taking care of her. Second, they challenge the authenticity and interpretation of the letter. With the exception of the signature, they say, it does not appear to be in Coreys handwriting, nor phrased in words she would use. In their view, if fairly read in context, the letter was nothing more (and intended as nothing more) than a recognition that Corey would no longer be around to help pay household bills, and authorizing Katherine and LaVerne to rent her space to tenants to pay her share.

LaVernes third argument is a claim of ouster based on Katherines continued occupation of the house and sole payment of its bills after Corey took sick and left, [Note 3] and then LaVernes sole payment of those bills after Katherines death. The defendants contest this as well, arguing that LaVerne has failed to make the requisite showing for ouster, and stating that they never intended to give up their interests.

The case was tried before me, jury-waived. LaVerne was represented by counsel and testified. Marietta, Deborah and Arthretta appeared and testified, representing themselves pro se. The other defendants were not present. Based on the evidence received, my assessment of the credibility of that evidence, and the reasonable inferences I draw from the credible evidence, I find and rule as follows.

Facts

These are the facts as I find them after trial.

In early 1968, Reverend Katherine Lewis, now deceased, began exploring the possibility of purchasing the house at 22 Wayne Street in Dorchester. She was the minister of the Holy Mount Zion Church, which had a small congregation of no more than 50 people. Katherine needed a loan and mortgage to make the purchase. Her application was denied, however, because she did not have a sufficient, consistent income; it varied with her congregations weekly donations and, in the banks view, too often dropped below what was needed. She had no supplemental income from any other source.

At that time, Katherine was living in a rented house with her granddaughter, plaintiff LaVerne Shelton (then LaVerne Moore), and a parishioner and friend, Ms. Corey Briley. This was a good arrangement for all three. Each was single, each had her own room and associated space in the house, and they got together for meals and activities only when they wanted to. LaVerne was willing to join in the mortgage application, but her participation was not sufficient. She was twenty-four years old, recently out of school, and had only a temporary secretarial job. Katherine thus approached Corey and asked if she would sign the note and mortgage as well. Corey had a long employment history as a machine operator, made a good, consistent income, and would easily qualify for the necessary loan. With Coreys participation, making her jointly and severally liable for the entire loan amount, a $15,900 mortgage was quickly obtained and the house was purchased. The record does not reflect the total purchase price, although it likely was not much greater than the mortgage amount, nor the relative contributions of Katherine and Corey towards the down payment (LaVerne testified that she never contributed anything towards the purchase of the house nor made any payments towards its mortgage). The mortgage was signed by all three, and the deed to the property showed the three of them as tenants in common, each having an undivided one-third (1/3) interest. Coreys was the first name on the deed and the first name on the mortgage. The three moved into the house on March 22, 1968. The monthly mortgage payment (principal and interest) was $95.40, plus tax and other escrows. According to LaVerne, this brought the total to between $209 and $250 per month.

The evidence now becomes disputed, without the aid of either contemporaneous documents or testimony from the direct participants (both Katherine and Corey are dead, and none of the witnesses at trial overheard any relevant conversations between the two). All LaVerne has is her memory of her own conversations with Katherine, in which (she claims) Katherine told her that she (Katherine) made all the mortgage payments. LaVerne has the burden of proof on this, and I find that she has failed to carry that burden. First, making the mortgage payments (writing the check or going to the bank) is not the same as providing all the funds for those payments, i.e. it is not inconsistent with Coreys regularly giving Katherine money towards the mortgage, tax and insurance obligations, or picking up other household expenses (repairs, food, etc.) in an equivalent amount as her agreed contribution. Second, given their relative financial status (Corey with a steady, well-paying job, Katherine dependent on varying contributions from a small congregation, and LaVerne contributing nothing), I find it is likely (and far more likely than not) that Corey made regular monetary payments towards these obligations, in at least her share. Given that she was Katherines parishioner and thus supportive of her ministry, it is also likely that she frequently contributed more than her share.

Subsequent events are not disputed. LaVerne, Katherine and Corey lived together in the house until 1971 when LaVerne moved to 95 Milton Avenue in Dorchester. Corey was diagnosed with cancer in 1982 and left the house in June to move in with her sister in Washington, D.C., dying there a year later. Katherine remained in the house. There is a letter, signed by Corey, which reads in its entirety as follows:

22 Wayne Street

Dorchester, MA

June 9, 1982

To Whom it May Concern:

I, Corey M. Briley, co-signer of a mortgage with Katherine C. Lewis and Laverne E. Moore, tenants in common, as one-third holder of interest, deliver this letter to Katherine C. Lewis and LaVerne E. Moore (Shelton), of Boston, Mass., to say I freely relinquish to them all my rights, title and interest, as one-third holder of interest of the property at 22 Wayne Street, Boston, Suffolk County, Massachusetts, this 9ths day of June, 1982.

Very truly yours,

s/ Corey M. Briley

All but the signature is printed, and both the printing and the handwritten signature are in the same black ink. The letter was in an envelope addressed to (Rev.) Katherine C. Lewis, again in printed letters and again in the same black ink. I find that Corey signed the letter, but did not create its text. It is written in highly formal words which likely originated in a document obtained from LaVerne (who worked as a secretary at the Hale & Dorr law firm) or some other legal source and then presented to Corey by Katherine. [Note 4] If Corey was the one who printed those words, she copied them. I find that Corey did not intend them to convey her fee interest in the property to Katherine and LaVerne, for three reasons. First, there is no other evidence of an intent to transfer, and nothing was recorded at the Registry of Deeds to reflect any transfer. Second, Corey continued to remain liable on the note and mortgage, and she was knowledgeable enough not to have transferred her interest in the property without getting a release from those obligations. Third, the letter is not a deed, duly sworn and witnessed (Corey surely knew the difference, since she had owned other properties in the past; so should Katherine have known), and it does not use the words convey, give, or transfer. Relinquish is a curious substitute. It may technically mean voluntarily cease to keep or claim, Concise Oxford Dictionary, 10th Ed. at 1209 (1999), but in this context, fairly read, it does so in the sense of control. Corey was sick  ill with cancer  and knew she would never return to the house. I agree with the defendants that, fairly read in context, the letter was intended simply to transfer Coreys right to participate in the of day-to-day control of the house to Katherine and LaVerne, not her ownership share, and not to take this asset away from her heirs who were going to take care of her in her dying days.

Corey died in 1983. Katherine died in 1988 and her interest passed to her only surviving heir, LaVerne. Katherine, who had become a Bishop in her church by this time, paid all mortgage, taxes and house-related bills from the time Corey left in June 1982 until Katherines death in 1988. LaVerne moved back into the house in 1990 and paid the mortgage until its discharge in 1998 as well as property taxes and other property-related expenses. LaVerne continued to live there until sometime in late 2005 or early 2006. None of the defendants came to the house or demanded access at any time after Corey left (June 1982). Beginning in 2006, LaVerne has attempted to sell house and keep the sale proceeds for herself but has been unsuccessful because she cannot deliver clear record title. She thus brought this case to establish title in herself, on the theories set forth above.

Further facts are set forth in the Discussion section below.

Discussion

Resulting and Constructive Trust

I begin with LaVernes theories of resulting and constructive trust. A resulting trust is a trust imposed by law when property is transferred under circumstances suggesting that the transferor did not intend for the transferee to have beneficial interest in property. Blacks Law Dictionary at 1517 (7th Ed. 1999). A resulting trust typically arises when a transfer of property is made to one person and the purchase price is paid by another who furnished the consideration; in such case a trust results in favor of the person who furnished the consideration. Nessralla v. Peck, 403 Mass. 757 , 763 (1989) (quoting Meskell v. Meskell, 355 Mass. 148 , 150 (1969). LaVerne asserts that the clear intent of the parties at the time of purchase was for Katherine Lewis to own this property and pay for it. Plaintiffs Mem. of Law at 3. She further asserts that Corey was put on the deed, mortgage and note solely because Katherine could not qualify for the loan on her own and, in return, Corey was to live there rent free. I disagree. LaVerne has not proved either of these assertions, and the burden of proof is hers. Moreover, the evidence that exists strongly suggests the contrary. Corey is on the deed, note and mortgage, indicating the parties intent to have her be a co-owner. As a signer of the note, Corey was jointly and severally liable, in full, for its repayment. Corey had the only predictable, steady income in the group. Katherines income from her small congregation (50 people total, including adults, married adults, and children) was almost certainly inadequate for her consistently to pay between $209 and $250 a month towards the mortgage and taxes without help from others. [Note 5] LaVerne admits that she gave no such help, making it likely that the help came from Corey. Corey told the defendants of her many improvements and repairs to the house, hardly the conduct of someone without an ownership stake. Corey never signed a deed granting her interest to anyone else. Her June 1982 letter certainly reflects her belief that she had such an interest at that time. [Note 6] In short, this is not Gerace v. Gerace, 301 Mass. 14 (1938), the case cited by LaVerne in support of her contentions. Unlike Gerace, I do not find any credible, persuasive evidence in this case that Corey agreed that her interest was properly Katherines, that Corey made no contribution to the down payment, and that Corey made no contributions towards the mortgage and taxes. As noted above, the evidence suggests the contrary.

For the same reasons, I find that LaVerne has failed to prove her theory of constructive trust. A constructive trust is imposed by a court on equitable grounds against one who has obtained property by wrongdoing, thereby preventing the wrongful holder from being unjustly enriched. Blacks Law Dictionary at 1515 (7th Ed. 1999). A constructive trust is a flexible tool of equity designed to prevent unjust enrichment resulting from fraud, a violation of a fiduciary duty or confidential relationship, mistake, or other circumstances in which a recipients acquisition of legal title to property amounts to unjust enrichment. Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235 , 246 (2007) (internal quotations and citations omitted). LaVerne asserts that a mutual mistake occurred when the title to the real estate was formed as tenants in common and not joint tenants, which she contends was their true intent. Plaintiffs Mem. at 4. In LaVernes words, the clear intent of the parties was that none of this property was to go to the heirs of Corey Briley and unjust enrichment will occur if the heirs to Corey Briley are allowed to take a portion of this property. Id. I disagree. First, there is absolutely no evidence of this. Second, it is contrary to the language of the deed, which declares them tenants in common. Third, given my finding that Corey paid her fair share, it is unlikely that she would have disinherited her heirs, with whom she was close (she went to live with them when she took sick), for the benefit of Katherines heirs, to whom she had no family relationship whatsoever. In any event, the burden of proving such a mistake is on LaVerne, the standard is full, clear and decisive proof, [Note 7] see Ward v. Ward, 70 Mass. App. Ct. 366 , 368 (2007), and she has failed to meet that burden.

The June 1982 Letter

LaVernes contention that Coreys June 1982 letter voluntarily terminated her interest in the property and transferred it to Katherine and LaVerne fails on the facts. For the reasons noted above, I find that the letter was intended simply to transfer Coreys right to participate in the of day-to-day control of the house to Katherine and LaVerne, not her ownership share, and not to take this asset away from her heirs who were going to take care of her in her dying days. [Note 8] The fact that Corey made no further financial or other contributions towards the house after her departure does not prove otherwise. The house is a large one. There were only two people living in it at that time (Corey and Katherine), and Corey may very well have anticipated Katherines renting out the vacant space and using that money to put towards the mortgage, taxes and insurance.

Ouster

Ouster is [t]he wrongful dispossession or exclusion of someone (especially a co-tenant) from property (especially real property). Blacks Law Dictionary at 1128 (7th Ed. 1999). [S]ole possession by one tenant in common is not in itself adverse to the interest of a nonpossessory cotenant; it could be consistent with the right of the cotenant. Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984). Ouster may be inferred if the co-tenant has a long, exclusive and uninterrupted possession without any possession or claim for profits by the other co-tenant(s) in common. Id. In most such cases, however, the periods of exclusive possession which worked an ouster varied from thirty to forty-seven years. Id. at 457. Moreover, ouster does not occur if absence and failure to make a claim is either sufficiently explained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right. Id.

Two things are undisputed. First, the defendants made no claim on the house until this lawsuit. This, however, is easily explained. None of them lived in New England (they come from the Washington, D.C. area). The house was being lived in by Katherine and, afterwards, by LaVerne  the same persons who had lived there with Corey when Corey was alive. Respecting Katherine and LaVernes right to continue living there undisturbed when none of the defendants had a need to do so themselves, and not demanding rent or other compensation when they themselves were not contributing towards the propertys expenses, cannot fairly be held against the defendants. Matters only changed when LaVerne left the house in 2006 and put it on the market. Second, neither Katherine nor LaVerne made any overt move to exclude the defendants from their interest in the house until LaVernes sales efforts in 2006, and there is no indication that LaVerne contacted the defendants either before or at that time to tell them she considered the house wholly hers. [Note 9] Seen in this context, the period of ouster began only in that year. The time between then and the filing of this lawsuit in 2011 is only five years, insufficient for ouster.

Conclusion

For the foregoing reasons, LaVernes request for a declaration and reformation of the deed making her sole owner of the 22 Wayne Street property is DENIED, and her claims are DISMISSED in their entirety, WITH PREJUDICE. The defendants remain 1/3 owners of the property and LaVerne the owner of 2/3s, all as tenants in common. This in no way precludes LaVerne from bringing claims against the defendants for their share of property expenses, nor precludes either LaVerne or the defendants from seeking partition and sale.

Judgment shall enter accordingly.

SO ORDERED.

FOOTNOTES

[Note 1] For convenience of reference, since several have the same last name, I refer to the persons involved in this case by their first names.

[Note 2] As set forth more fully below, neither Katherine nor LaVerne had predictable, steady incomes at the time the house was purchased. Corey did.

[Note 3] LaVerne had married over a decade before, moving out of the house at that time and leaving Katherine and Corey its sole occupants thereafter. Katherine continued to live in the house after Corey took sick and moved to Washington, D.C.

[Note 5] Katherine was unmarried and unattached, and would have had to pay all her living expenses out of the money she received from her congregations contributions. A large part of those contributions would also have been necessary to pay for the upkeep and expenses of the church and its activities. Her apparent ability to pay the mortgage and taxes after Corey left in 1982 (14 years after the mortgage began) may well have been due to her advancement in the church to Bishop, and perhaps from having a second job.

[Note 6] Note that it says relinquish, rather than I acknowledge that my interest is properly Katherines.

[Note 7] This is particularly so in this situation since Katherine was Coreys minister, a fiduciary relationship that suggests special scrutiny of the contention to ensure it is properly proved..

[Note 8] Katherine likely viewed it in this light as well. She never gave nor showed the letter to LaVerne during her lifetime, and LaVerne only discovered it after going through Katherines belongings in 2006 as she prepared the house for sale  eighteen years after Katherines death. Had Katherine truly considered the letter a transfer of full ownership to she and LaVerne, surely she would have so informed LaVerne at the time the letter was signed and received (June 1982) and not simply put it in a drawer, taking no further action.

[Note 9] Once sued, each of the defendants promptly responded to LaVerne and this court that they did not intend to relinquish any of their rights.